Property Rights over Freedom of Expression

In the latest legal battle against spam, the Dutch Supreme Court has supported Internet Service Provider (“ISP”) XS4ALL to rule that the property rights of the ISP outweigh a direct marketing agency’s right of freedom of (commercial) expression, therefore permitting ISPs to take measures to bar spam.

In his advice to the Court, the Advocate-General pleaded for weighing up the interests on a case-by-case basis:

“[t]he ISP may prevent third parties from using ‘his’ facilities if he can advance sufficiently important grounds, and if his decision does not rest upon an unreasonable weighing up of interests”.

In its judgment of 12 March, 2004 the Supreme Court went one step further to deliver a judgment which gives (almost) absolute priority to the property rights over other rights:

“[I]f someone, without having the right thereto, makes use of a property to which another holds an exclusive right, and as a result thereof he, as will usually be the case, infringes that exclusive right, he acts unlawfully with respect to that entitled person, except if there is ground for justification”.

In the opinion of the Supreme Court, freedom of expression does not constitute such a ground for justification. Moreover, the payment of the damage suffered by the ISP cannot be a ground for justification either.

The judgment means that, in theory, ISPs may prohibit and block all spam, including that which is directed to business e-mail addresses. In practice, however this will be difficult to achieve. An ISP will first have to warn a specific spammer, and thereafter claim a prohibition linked to a penalty payment per violation through preliminary relief proceedings. Although it seems likely that the provider will be able to win such proceedings, the ISP may not be inclined to follow such a strategy. This is a costly form of spam prevention, as the law does not provide for damages to cover all the legal costs which will be incurred.

The judgment legitimises the implementation of strict spam filters by ISPs, but according to some this is an inadequate solution to the problem. The NLIP, the Dutch branch of the Internet Service Providers’ organisation, points out that:

“[t]aking preventive measures has little effect if the spam prohibition is not really maintained. It is therefore of vital importance that authorities take severe measures if it turns out that undertakings violate the law and send unsolicited mail after all”.

The judgment has been criticised, inter alia, by the Dutch privacy and civil rights organisation, Bits of Freedom, for the far-reaching consequences it could have in terms of the functioning and development of the Internet.

The infrastructure of the Internet has an almost indefinite number of owners. All cables, routers, modems, domain name servers, websites and all other network elements are the exclusive property of different owners. In the reasoning of the Supreme Court, these owners may deny others the use of and/or access to their cables, routers and the like, except when there is a justification for not prohibiting access. This, not only enables them to fight spam, but also to block the conveyance of other unsolicited information, even if this information is not unlawful.

Some writers argue the judgment could imply that a website owner may prohibit another party to have hyperlinks linking to its site. Further, the owner may also prohibit search engines from accessing its site.

In this respect it is rather odd that the judgment finds in favour of Internet Service Provider XS4ALL, which presents itself as a supporter of the freedom of expression.